the court before they proceeded to hear a motion of this kind, as the judgment of the court must be pronounced upon the determination of the question after argument, which might be nugatory act, unless the party was in court to receive his sentence, and in the custody of the sheriff to have it carried into execution. The court therefore refused to go into the argument, and directed the Attorney-General to proceed against the defendant and his sureties upon their recognisances; and in the mean time, ordered a bench warrant to issue against the defendant upon his conviction, in order to have him appre hended and brought to final justice. Present, BURKE, GRIMKE, WATIES and BAY. The State V. Rippon. DOCTOR JAMES against DOCTOR O'DRISCOLL. MOTION for a new trial. Charleston District,1797. Where servi. ces were ori ginally ren dered gratui tously they shall never af terwards be converted in to a charge. All contracts must be good or valid at their original creation, and must not de This was a case on a summary process which the defendant did not choose to submit to the judges' decision alone, but claimed his right of submitting it to a jury, under a clause of the " act giving the judges a power to determine "all causes under 20. sterling, in a summary manner, "without a jury; but with this reservation, that if either party chose to claim the right of a trial by jury, he should "have that privilege;" the cause accordingly went to jury, when Doctor James produced his day book to prove contingencies. his original entries. Mr. Marshall, for the defendant, then contended, that these charges were originally intended to have been rendered gratuitously, and never to be converted into a charge against the defendant; that they were both physicians, who practised in the same parish, and had been upon very friendly and intimate terms with each other; bus a pend upon subsequent James V. 'Driscoll. afterwards they quarrelled, and had a very serious difference; and it was during this social intercourse and good neighbourhood, that the services charged were performed in the defendant's family, by his brother physician: and upon inspection of the plaintiff's day book, the entries would appear, he said, to have been made upwards of two years after the time the services were rendered, which was not contradicted. That all the other entries in the plaintiff's day book, where charges were intended to have been originally made, were entered by the plaintiff with a great degree of regularity, in regular successive order, day after day, as they occurred; but the entries of these charges, were more than two years after the performance of the services; and that, too, after the breach had been made in their former friendship: which evinced beyond all doubt, that the plaintiffs' attendance in the defendant's family was intended by him as gratuitous, and that he had no idea of converting them into a charge, until after this quarrel; he said the law was very clear upon the point, and mentioned a case tried in Ireland, where an attorney took an apprentice, and it was agreed that the apprentice should find himself diet and lodgings, but the master taking a fancy to the lad, had found him board and lodgings himself for the five years; on a quarrel, however, afterwards, he made a charge of this board, &c. In this case, the Irish judge, who tried the cause, left it to the jury to determine, whether the master intended it as a charge or a favour, and the jury found for the apprentice: also relied on 2 Str. 728. where a man who was no broker, had acted as one, in hopes of a legacy; but here the court said, it had the appearance of acting as a friend, and as if he did not expect to be paid for it; in which case, he could not maintain his action. The judge in the present case, in like manner, left it to the jury to determine, whether Doctor James, at the time he performed the services in this case, intended it as a favour or a charge, and to return a verdict accordingly. The jury found for the plaintiff the amount of his demand 10%. sterling. James V. O'Driscoll. 67. Vin. tit.. Contract, vol. After argument in favour of this motion for a new trial, See 10 Mod. the judges laid it down as correct law, that all contracts must be good or bad in their original creation, and must not 5. p. 507. depend on subsequent contingencies; that is, whether the party chose to make it a gift, or a charge at a future day or not. That it will never permit a friendly act, or such as was intended to be an act of kindness or benevolence, to be afterwards converted into a pecuniary demand; it would be doing violence to some of the kindest and best effusions of the heart, to suffer them afterwards to be perverted by sordid avarice. Whatever differences may arise afterwards among men, let these meritorious and generous acts remain lasting monuments of the good offices, intended in the days of good neighbourhood and friendship; and let no after circumstances ever tarnish or obliterate them from the recollection of the parties. But as the party defendant himself had thought proper to take this case from the court, and to submit it to a jury, who in the summary and equitable jurisdiction of this court, were judges, jurors and chancellors of his own choosing, he must be bound by their decision or verdict, as much as he would have been bound by an award of arbitrators, against whom no misconduct could be alleged. Therefore the motion for a new trial was refused on the latter ground only. Present, BURKE, GRIMKE, WATIES and BAY. Charleston District,1797. A man taking the benefit of HUNT against CHARLES HOWELL SIMONS. UPON a motion to have defendant discharged from the insolvent prison, he being in custody on a ca. sa. debtors' act in city court en titles him to a discharge a the court of common pleas. the inferior Mr. Desaussure moved for the defendant's discharge, on the ground that he had taken the benefit of the insolvent gainst a suing debtors' act in the court of wardens, for the city of Charleston, creditor in and had been discharged from the custody of the city sheriff, upon giving up his effects for the benefit of his creditors in that court, which he contended operated as a discharge from the suits depending in the court of common pleas, as well as from those which had been commenced in the inferior city court; for the insolvent debtors' act expressly declares, that a man who shall fully and fairly give up all his estate real and personal to his creditors, shall be for ever discharged, as well against the claims of those at whose suits he may be confined, as against all his other suing creditors. The words in this act are general, and as comprehensive as they well can be; and extend to the suing creditors in any court, or in any jurisdiction whatever; and upon this ground it is, that the court of equity, has uniformly discharged defendants who have been confined by process from that court, who had previously taken the benefit of the insolvent debtors' act in the court of common pleas. Against this motion it was urged, that the court of common pleas, being a court of supreme jurisdiction, was not bound by any of the acts of an inferior court of limited jurisdiction; nor was it bound to notice their proceedings, although the court of equity, being a court of supreme jurisdiction, may pay that respect to the proceedings of a court of supreme law jurisdiction, which was of equal notoriety with itself. But it was resolved by the judges unanimously, that they were bound to take notice of the proceedings in the inferior courts, where they were regular and agreeable to the rules of law; for although the court of common pleas possessed a superintending and controlling power over them, when they erred; yet when they confined themselves within their proper limits and jurisdictions, and acted legally, this court would support their proceedings. That the insolvent debtors' act, was a remedial law,and should be beneficially and liberally construed for unfortunate men, who acted a fair and honest part; and it operated as a discharge in law, against all a man's suing creditors; it was immaterial in what courts the suits were commenced; the act was as effectual a discharge in one court, as in another. The plaintiff, however, has a right to a distributive share of the insolvent debtor's effects, by giving in his claim to the assignees appointed by the city court. Let defendant be discharged. All the Judges present. N. B. Upon the authority of this case, great numbers have been discharged by the court of common pleas, who had taken the benefit of the insolvent debtors' act in the inferior court. Hunt V. Simons. THOMAS SINGLETON against The COMMISSIONERS OF THE Charleston District,1797. In cases of summary con UPON a rule to shew cause why a mandamus should not issue, to restore the plaintiff to the office of inspector of victions tobacco, from which he had been removed. by commission ers of tobacco It appeared by the book of proceedings kept by the board inspection the charges aof commissioners, that the plaintiff, Mr. Singleton, had gainst an inbeen removed from his office of inspector of tobacco, at the be specific, spector should and all the witnesses ought to be on oath, that the court may judge of the reasonable grounds of a removal from office; otherwise, a mandamus will lie to restore him to office. VOL. II. |